There are certain situations that occur in one’s life that cause an individual to seek the protections of the law to prevent acts of another party. In these instances, Courts may grant injunctions against the aggrieving party, enjoining that party from partaking in a certain type of action. These types of actions are known as restraining orders. This article will explore the different types of restraining orders and the actions that would be covered by each type of restraining order. Further, we will explore the process that an individual would follow to obtain a restraining order. Finally, in this article, we will discuss potential settlement options if the parties decide to attempt to settle the situation without an evidentiary hearing.
In the State of Wisconsin there are four (4) different types of restraining orders: domestic abuse, harassment, child abuse and individual at risk. Domestic abuse restraining orders may occur between adult family or household members, by an adult caregiver against an adult who is under the caregiver’s care, between former spouses, between adults who have or had a dating relationship or between adults who have a child together. The following behaviors constitute domestic abuse, intentional infliction of physical pain or injury, intentional impairment of a physical condition, sexual assault, stalking, intentional damage to physical property belonging to the petitioner or a threat to engage in the conduct of any of these behaviors.
Harassment restraining orders by definition are much broader than that of the domestic abuse restraining orders. Behaviors that would be considered harassment include striking, shoving, kicking, other physical contact, child abuse, sexual assault, stalking, threats or attempts to do any of these or conduct or acts that harass or intimidate another person, which serve no legitimate purpose.
Child abuse restraining orders, under Wisconsin law, include the following behaviors: causing physical injury to a child, trafficking a child, sexual assault or exploitation of a child, manufacturing methamphetamines when a child is present or causing emotional damage to a child because of neglect.
Finally, the individual at risk restraining orders involve an individual at risk who is an adult with a physical or mental condition that substantially impairs the ability to care for his or her needs, or an elderly individual, over the age of 60, who is experiencing or at risk of experiencing the following behaviors: physical abuse, sexual abuse, emotional abuse, financial exploitation, neglect, self-neglect, treatment without consent, unreasonable confinement or restraint, harassment and interfering with the delivery of protective services.
Restraining orders are typically heard initially by a Court Commissioner. To initiate the process in obtaining a restraining order in the State of Wisconsin, the Petitioner must file a Petition, an Information Sheet for the Sheriff to Effect Service, and a Confidential Address Information form. The restraining order will be filed in the circuit court of the county in which the Petitioner is located. If the parties are indigent there is a form that can be filed where the filing fee is waived for the Petitioner. Once filed, the Court Commissioner would review the pleadings that have been filed by the Petitioner and if the Court Commissioner feels the pleadings meet the statutory requirements, the Court Commissioner will set the matter for an evidentiary hearing and will issue a temporary restraining order that will go into effect immediately until the time of the evidentiary hearing. If the Court Commissioner does not feel that the pleadings meet the statutory requirements, the Court Commissioner may not issue a temporary restraining order; however, the Petitioner may request a hearing nonetheless on whether the Petitioner has met the statutory requirements for the permanent injunction. In this instance there will be no temporary restraining order in place until the time of the evidentiary hearing.
The pleadings need to be personally served on the Respondent a certain number of days prior to the evidentiary hearing to provide the Respondent with adequate notice. If personal service is not achievable, the Petitioner can publish the notice in the newspaper of the city in which the Respondent is located. At the evidentiary hearing, both parties will have the opportunity to present evidence and witnesses to the Court, upon which the Court will decide if the Petitioner has achieved their burden of proof and whether the permanent injunction should be granted. If that is the case, the Court Commissioner will then order the permanent injunction for a specific period of time, which is discretionary to the Court Commissioner; however, the typical term of a restraining order is four (4) years. The Petitioner can also request that the Respondent be required to turn in any firearms in the Respondent’s possession if there is any indication that the Respondent may use the firearms against the Petitioner. Once a ruling is made by a Court Commissioner, either party may appeal the decision of the Court Commissioner to a circuit court judge, in a de novo hearing.
In certain instances, settlements may be reached to avoid the need for an evidentiary hearing. The evidentiary hearing can be a traumatic event for both parties, especially the Petitioner. Typically, these settlements are referred to as a “private restraining order”, wherein the parties agree to a mutual no contact order. The no contact order can be indefinitely, which is a benefit to settling the matter in this fashion. When a restraining order is granted through the Courts, the Petitioner is limited to a finite period of time that the injunction will be in place, typically four (4) years. Additionally, in a settlement, the parties can agree that if the Respondent violates the terms of the “private restraining order”, that the Petitioner can file an affidavit of non-compliance with the Court and be issued a permanent injunction for a term of four (4) years. This provides the Petitioner with the most protections, a no contact order that will extend indefinitely and a permanent injunction through the Court, if the Respondent violates the “private restraining order” terms and conditions. In some instances, the Court may not allow an automatic restraining order if there is a violation of the “private restraining order” and may require that the Petitioner file a motion to reopen the matter and provide proof of a violation thereof. This is discretionary of the Court Official hearing the matter.
Petitioners can seek guidance in the completion of the process through domestic abuse agencies who have victim coordinators that will assist the Petitioner in completing the paperwork and accompany the individual to Court to explain the process and assist in any negotiations that may be necessary. Parties should remember that as much as a restraining order is an official matter through the Courts it is still a piece of paper. If a party feels they are truly in risk of harm, they may need to seek assistance from law enforcement. Domestic abuse agencies can help victims in these types of situations to make decisions and assist in finding the protections that are needed.
One would hope that they are never faced with a situation wherein they need the assistance of the Courts to protect themselves and their loved ones. However, if the situation presents itself there are procedures in place, as outlined in this article, to pursue necessary protections.
